Rousan v. Roper

Decision Date08 February 2006
Docket NumberNo. 04-3827.,04-3827.
PartiesWilliam L. ROUSAN, Appellant, v. Donald P. ROPER, Superintendent, Potosi Correctional Center, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Philip M. Horwitz, argued, Clayton, MO (Eric W. Butts of St. Louis, MO, on the brief), for appellant.

Michael J. Spillane, argued, AAG, Jefferson City, MO, for appellee.


GRUENDER, Circuit Judge.

A Missouri state court sentenced William L. Rousan ("Rousan") to death after he was convicted of two counts of first-degree murder. The Missouri Supreme Court affirmed the convictions and sentence and subsequently affirmed the denial of Rousan's motion for post-conviction relief. Rousan timely petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief on nineteen separate grounds. The district court1 denied habeas relief but granted a certificate of appealability on eight of the grounds. Rousan now appeals the denial of the writ on those eight grounds. We affirm.


In September 1993, Rousan resided at the farm of his girlfriend, Mary Lambing. Rousan, his son, Brent Rousan ("Brent"), and his brother, Robert Rousan ("Robert"), decided to steal cattle from the nearby farm of sexagenarians Charles and Grace Lewis. They drove to the Lewis farm in Rousan's truck. During the drive, the three men discussed the prospect of killing the Lewises and agreed that "if it had to be done it had to be done."

Rousan parked the truck approximately two miles from the Lewis farm. Rousan then pulled out Lambing's .22 caliber rifle and loaded it "in case anyone was home." Brent asked to be the one who carried the rifle, stating that he was "man enough to do whatever needed to be done and that he would use the weapon." After debating whether Brent was "man enough," Rousan yielded the gun to Brent. He warned Brent that if they were caught, they would "fry." The three men then approached on foot to within viewing distance of the Lewis residence and sought cover behind a fallen tree.

The three men lay in wait until the Lewises returned to their residence that afternoon. Charles Lewis mowed the lawn, while Grace Lewis talked on the phone to the couple's daughter. Brent became impatient and said he wanted to "do it." Rousan instructed Brent to remain behind the tree while he and Robert secured the house. Before Rousan reached the house, however, Charles Lewis spotted Brent and shouted at him. Brent shot Charles Lewis six times with the rifle, causing his death. Inside the house, Grace Lewis told her daughter on the phone that she heard gunfire and hung up. When Grace ran out the front door to investigate, Brent shot her several times, fracturing both of her arms. Grace turned and ran back into the house. Rousan followed. Rousan placed a garment bag over Grace's head and the upper part of her body, picked her up, carried her back outside and placed her on the ground. At that point, Grace was still alive. Rousan instructed Brent to "finish her off." Brent fired one shot into Grace's head. That shot was fatal.

Rousan, Brent and Robert took the bodies to the Lambing farm and buried them. About a year later, Rousan's brother-in-law called the police, believing the call to be anonymous, and informed them where the Lewises' killer resided. The police traced the call to Rousan's brother-in-law, interviewed him for more information, and eventually apprehended Rousan hiding on another nearby farm.

A jury found Rousan guilty on two counts of first-degree murder for the murders of Grace and Charles Lewis. The jury recommended a death sentence on both counts, finding five statutory aggravating circumstances in reaching each decision. The trial judge pronounced a death sentence for the murder of Grace Lewis and a sentence of life without parole for the murder of Charles Lewis. On direct appeal, the Missouri Supreme Court affirmed the convictions and sentences. State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998). After exhausting his state-law post-conviction remedies, see Rousan v. State, 48 S.W.3d 576 (Mo. banc 2001), Rousan sought a writ of habeas corpus under 28 U.S.C. § 2254 on nineteen separate grounds. The district court denied habeas relief but granted a certificate of appealability on the following eight claims: (1) the striking of three jurors for cause violated Rousan's rights under the Sixth, Eighth and Fourteenth Amendments; (2) insufficient evidence supported the conviction for first-degree murder of Charles Lewis, violating the due process clause of the Fourteenth Amendment; (3) the admission into evidence of victim photographs violated due process; (4) trial counsel was ineffective for failing to move to redact references to Rousan's prior convictions when Rousan's statement to police was introduced as evidence; (5) the prosecutor's penalty phase closing argument violated due process; (6) a jury instruction on accomplice liability prejudicially confused the jury, violating due process; (7) a jury instruction on statutory aggravating circumstances prejudicially confused the jury, violating Rousan's rights under the Eighth and Fourteenth Amendments; and (8) the trial court's refusal to instruct on specific non-statutory mitigating circumstances, violating Rousan's rights under the Eighth and Fourteenth Amendments.


We review the district court's findings of fact for clear error and its conclusions of law de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005). To succeed on a claim for habeas relief under § 2254, an applicant must show that the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) ("AEDPA"). "A decision is `contrary to' federal law... if a state court has arrived `at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or if it `confronted facts that are materially indistinguishable from a relevant Supreme Court precedent' but arrived at an opposite result." Davis v. Norris, 423 F.3d 868, 874 (8th Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alteration in Davis). "A state court unreasonably applies clearly established federal law when it `identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495) (alteration in Davis). In other words, it is not enough for us to conclude that, in our independent judgment, we would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable. Lyons, 403 F.3d at 592. Finally, facts found by the state court are presumed to be correct unless the applicant can rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A. The Striking of Three Potential Jurors for Cause

Rousan claims the trial court violated his constitutional rights in striking three potential jurors for cause. Potential jurors may not be struck for cause simply because they state general conscientious or religious scruples with regard to the death penalty. Gray v. Mississippi, 481 U.S. 648, 657, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). However, a potential juror may be struck for cause if his views "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quotation omitted). In striking such a juror, it is not necessary to prove with "unmistakable clarity" that a potential juror's ability is impaired. Id.

Rousan points to statements made during voir dire by each of the three potential jurors, venirepersons Cowan, Henkins and Davis, to the effect that they could put aside their personal reservations and apply the law as instructed with regard to the death penalty:

DEFENSE COUNSEL: [Y]ou personally will be satisfied if they prove the defendant guilty beyond a reasonable doubt to you, is that right?


DEFENSE COUNSEL: You won't make them do more than what the law says, you will apply the burden of proof which says that the State must prove the defendant guilty beyond a reasonable doubt, that's the standard you use?


* * * * * *

DEFENSE COUNSEL: Can you set aside your opinion for the purposes of doing citizenship duty as a juror ...?

HENKINS: I believe so.

* * * * * *

COURT: Could you follow the instructions and give realistic consideration to both sides?


COURT: Could you under any circumstances return a verdict of death in a case?

DAVIS: Yes, I think.

The Missouri Supreme Court summarized the voir dire of the three potential jurors as follows:

During the state's voir dire, venireperson Cowan expressed doubt that he could vote for the death penalty. He also stated that "there would have to be no doubt at all" before he would vote to impose the punishment of death and that he probably would require more proof of guilt in a capital case than in other cases. In response to later questions, however, Cowan equivocated about his ability to follow the law. Cowan stated that he could sign the death verdict if he were foreman. During the defense's voir dire, Cowan stated a number of times that he could follow the law, but also stated once that he was not sure he could do so. When later questioned by the court and by the state, Cowan stated...

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